The Ethics of Working with Witnesses and Experts

Moderator: Kelli Hinson │ Carrington Coleman

Speakers: Jeff Dougherty│ Courtroom Sciences, Inc.Scott Van Meter │BRG Rebecca Szelc│ BRG Bill Cobb │Cobb Martinez Woodward PLLC

Texas Rule 3.04(b)

A lawyer shall not . . . counsel or assist a witness to testify falsely . . .

Texas Rule 1.02(c)

A lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is fraudulent. A lawyer may discuss the legal consequences of any proposed course of

conduct with a client . . . .

Restatement (Third) of Law Governing Lawyer, §116, Cmt b

“Witness preparation may include rehearsal of testimony. A lawyer may suggest choice of words that might be employed to make the

witness’s meaning clear. However, a lawyer may not assist the witness to testify falsely as to a

material fact.”

Restatement (Third) of Law Governing Lawyer, §116, Cmt b

Lawyers may “reveal[ ] to the witness other testimony or evidence that will be presented

and ask[ ] the witness to reconsider the witness’s recollection or recounting of events in

that light.”

Texas Rule 5.03

A lawyer may not direct a non-lawyer to engage in activities that are not compatible with the lawyer’s ethical obligations, and the lawyer is subject to sanctions just as if the lawyer had

engaged in the conduct directly.

Preparation = Coaching?

Working with Experts

Gerke v. Travelers Cas. Ins., 289 F.R.D. 316, 326-28 (D. Or. 2013)

• Rule 26 does not preclude counsel from providing assistance to the experts in preparing the reports.

• Counsel may assist the expert in preparing the report as long as the attorney does not change the substance of the opinion of the expert witness.

• Courts focus on whether the expert witness offered substantial input into what was put into the report.

• Others may assist in the preparation of the report but the expert must freely authorize and adopt the changes as his or her own, and the final report must be that of the expert.

Preparing Non-Client Witnesses

• Privileged?• Texas Rule 4.03: Dealing with

Unrepresented Persons– Clarify your role• Texas Rule 4.02: No Contact Rule

What did you do to prepare?

Discovery re: Witness Consultant

In re Cendant Corp. Sec. Lit.,343 F.3d 658 (3d Cir. 2005).

Discovery re: Experts

• Fed. R. Civ. Proc. 26(b)(4)– Protects draft expert reports and disclosures– Protects communications between attorneys and

experts, except communications related to• Expert’s compensation• Attorney providing facts or data that the expert

considered in forming opinions• Attorney providing assumptions that the expert relied

on in forming opinions